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A President Barack Obama nominee to a federal appeals court is mired in controversy amid revelations that the former Justice Department lawyer had written government memos legally justifying the killing of an American overseas with a drone.

In response to concerns from senators and the American Civil Liberties Union, the White House agreed this week to allow lawmakers to review at least one of the memos from David Barron, now a Harvard Law School scholar, in a classified setting.

The bruhaha over the nominee to the US First Circuit Court of Appeals is reminiscent of the flap over a President George W. Bush nominee to the Ninth US Circuit Court of Appeals. Before Bush elevated Jay Bybee to the Ninth Circuit, Bybee, as an assistant Attorney General in the Office of Legal Counsel, had signed off on John Yoo's now-famous torture memos authorizing waterboarding and other torture methods in 2002.

That was not disclosed until 2004. But the Senate had confirmed Bybee the year before.

Is the Barron flap just politics? Does it matter what a judge's background is? Last year, for example, Judge Bybee reversed a US prisoner's lawsuit accusing his jailers of torture for keeping his cell with continuous light, removing a mattress, and other allegations. In his 2 to 1 ruling, Bybee wrote that prison guards "did not have fair notice that their actions were unconstitutional." The dissenting voice on the opinion wrote that "it was clearly established law that conditions having the mutually reinforcing effect of depriving a prisoner of a single basic need, such as sleep, may violate the Eighth Amendment."

The Senate Judiciary Committee forwarded Barron's nomination to the full Senate in January. Committee chairman Sen. Patrick Leahy (D-VT) said committee members had, in private, reviewed the memo the White House is releasing to all senators. The Democrat from Vermont said the Barron affair is politics, pure and simple.

"Senate Republicans have consistently blocked most of President Obama’s judicial nominees so it comes as no surprise that they continue to do so with this nominee. David Barron is a brilliant lawyer who is committed to public service," said Leahy. "Based on his entire career as a lawyer, I am confident he will be an excellent judge on the First Circuit. I supported David Barron’s nomination in the Judiciary Committee and I look forward to supporting his confirmation on the Senate floor."

But it's not just the right who is questioning Barron. The ACLU said the Office of Legal Counsel memos "written or signed by Mr. Barron helped form the purported legal foundation for a large-scale killing program that has resulted in, as Senator Lindsey Graham [R-SC] stated last year, as many as 4,700 deaths by drone attacks, including the deaths of four American citizens ..."

The Barron flap, meanwhile, comes two weeks after a federal appeals court ordered the Obama administration to disclose publicly the legal basis for targeting Americans with drones.

The so-called targeted killing program—in which drones from afar shoot missiles at buildings, cars, and people overseas—began under the Bush administration. The program, which sometimes kills innocent civilians, was broadened under Obama to include the killing of Americans.

The Obama administration has yet to comply with that ruling as it considers its next legal options.

The Barron memo the administration is letting senators review concerns Anwar Al Awlaki, a New Mexico native and radical cleric who the authorities said was an al-Qaida recruiter along the Arabian Peninsula and was associated with the September 11 hijackers. He was killed by an American drone strike in Yemen two years ago.

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David Kravets
The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper. Emaildavid.kravets@arstechnica.com//Twitter@dmkravets

I'm sorry, but I feel that anyone who believes in, let alone writes a brief supporting, remote targeting and (lets call a spade a spade) assassination of American citizens even while overseas has no business sitting on any bench in any judicial court here in the United States.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process. If you really want them, send in a team to extract them and bring them back to face justice in a court. Revoke their passports and if they get stopped in an extradition-friendly country and held up, extradite them. Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

I'm sorry, but I feel that anyone who believes in, let alone writes a brief supporting, remote targeting and (lets call a spade a spade) assassination of American citizens even while overseas has no business sitting on any bench in any judicial court here in the United States.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process. If you really want them, send in a team to extract them and bring them back to face justice in a court. Revoke their passports and if they get stopped in an extradition-friendly country and held up, extradite them. Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

Nevermind the implications of killing people in foreign countries while not actively in a real war. Declaring a "war on terror" is not sufficient, imho, to justify using national resources to kill people in foreign countries and without due process. How much are we paying and/or supplying to those nations on whom we drop our little winged bombs to allow us to continue to do so?

Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

Yeah and the fact a drone did it honestly has no bearing on the issue at hand, and reeks of political bullshit. Legally, it shouldn't matter if it was via seal team, robot, cruise missile, or hydrogen bomb. The government was targeting it's own citizen for assassination.

I simply cannot comprehend how it makes sense to classify the reasoning upon which a legal decision is taken. I can understand that, in a specific case, some of the operating details are classified (names, locations, specificities of the employed means, etc.) but they can be easily replaced by more generic terms which do not compromise the relevant operations while keeping the overall legal reasoning public.

That and the fact that this kind of opacity is deemed useful only because terrorists are targeted. It would be defendable to an extent if terrorists killed thousands of americans per year but aside from 9/11 they are doing a pretty bad job at it. It fails me that reasonable people can consider this a threat to national security: car drivers kill thousands of US citizens per day. How can something which kills barely one tenth per year threaten the security of the US unless they overreact and collectively jump off a cliff in fear?Please explain.

I fail to find a reasonable explanation for why the combination of the aforementioned two absurdities. I will resist relying on conspiracy theories but damn, they make it really hard.

I'm not quite sure the intent of this article. It seems to be trying to soften the allegations by referring a previous republican pick that had a dirty record, only found after his confirmation. I don't see what that has to do with this current pick as the allegations are entirely different. I'm not too keen on a man that wrote a justification for killing Americans, but without the actual memo to look at, we will have to wait and see the result of the investigation.

The four americans aren't really that important, they aren't even 0.1%, barely a rounding error. The other 99.9% are the ones that really make up the bulk of the victims.

This reminds me of this old joke:

Quote:

I ran into Hitler. I was surprised to see him and asked him what he was up to? He said "This time I am going to kill 6 million Jews and two clowns!" "Two Clowns? Why are you going to kill two clowns?" "See? Nobody cares about zee Jews."

Wrote the memos that were the legal basis for the extrajudicial killings of US citizens...Seems like exactly the "law and order" type of guy you would want to nominate as a judge.Thanks Obama.

I don't know whether it's more disturbing that he wrote the memo or that he's getting rewarded with a lifetime appointment to federal judge.

This clearly seems like a "you write me a memo that provides a 'my lawyer said it was ok' defense to an action that we both know is really illegal, and I'll reward you with a prominent position in the judiciary" tit-for-tat deal.

I wonder how many Harvard law profs the Obama administration had to approach before they found one skeezy enough to take this deal?

It's a damn cliff we're falling off of. This isn't rocket science: if it is wrong for the OTHER guys to do it, it is wrong for YOU to do it. Sooner or later, a party you don't agree with is going to get elected, and they will use all the toys against you that you used against them. So how about showing some sense.

Funny thing reading the bill of rights:.i see a lot of references to peoples and persons, but not one mention of AMERICANS. In the Declaration of Independence, there is even a reference to inalienable human rights. So why is it okay to do this anywhere? It isn't. If 4 year old children get it, why can't the grown men and women running our country? There is nothing complicated about any of this except how they are trying to twist the law so they can do something they already know is wrong. Grrr.

Soon, we will be using rendition and drone strikes to take out dissenting opinions. Then billing the families for the hardware.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process.

It should be noted that "enemy combatants" is these days a fairly meaningless term (on purpose), and the one US citizen targeted for killing qualified as both a citizen and as an enemy combatant (note the line "the legal rationale behind its claims that it may kill enemies who are Americans overseas").

It should also be remembered that field executions for traitorous behavior is not new.

I abhor these drone strikes and the killing of citizens by their own government, and in fact agree with pretty much all of the comments so far - particularly regarding the need for due process in place of assassination. But we can't ignore history and act like the US government hasn't killed its own soldiers on the field of battle before. The only things really new here are the drone firing the weapon and the scope of what the government considers the battlefield.

I'm sorry, but I feel that anyone who believes in, let alone writes a brief supporting, remote targeting and (lets call a spade a spade) assassination of American citizens even while overseas has no business sitting on any bench in any judicial court here in the United States.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process. If you really want them, send in a team to extract them and bring them back to face justice in a court. Revoke their passports and if they get stopped in an extradition-friendly country and held up, extradite them. Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

Assassination of anyone without due process is a bad thing in general.

Being a non USian I wish the right for a due legal process was granted equally to everyone, including non US citizens. I fail to understand why a citizen of a foreign nation would have less rights simply because they were not born in the right place.

I'm sorry, but I feel that anyone who believes in, let alone writes a brief supporting, remote targeting and (lets call a spade a spade) assassination of American citizens even while overseas has no business sitting on any bench in any judicial court here in the United States.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process. If you really want them, send in a team to extract them and bring them back to face justice in a court. Revoke their passports and if they get stopped in an extradition-friendly country and held up, extradite them. Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

+1000. The administrative branch has no authority to order the execution of citizens. Only a court can do that, after a trial. Our president (who reminds us occasionally that he's a constitutional scholar) should know this.

It's a really bad precedent to allow somebody in the administration to unilaterally sentence a citizen to death with no trial.

I'm not quite sure the intent of this article. It seems to be trying to soften the allegations by referring a previous republican pick that had a dirty record, only found after his confirmation. I don't see what that has to do with this current pick as the allegations are entirely different. I'm not too keen on a man that wrote a justification for killing Americans, but without the actual memo to look at, we will have to wait and see the result of the investigation.

If the Executive branch has anything to say about it, we will be waiting indefinitely. They still have the ability to appeal the ruling and if they do, I am sure they will drag their feet as much as possible.

What is really depressing is the reason why the Administration is being ordered to disclose- not because of civil liberties, but because they publicly acknowledged that the program exists in the first place. The argument is basically "You can't expect absolute secrecy for something you have only partially kept under wraps."

The lesson the Executive will take away from this is what the NSA already preaches: "Admit nothing. Deny Everything. Classify everything."

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process.

It should be noted that "enemy combatants" is these days a fairly meaningless term (on purpose), and the one US citizen targeted for killing qualified as both a citizen and as an enemy combatant (note the line "the legal rationale behind its claims that it may kill enemies who are Americans overseas").

It should also be remembered that field executions for traitorous behavior is not new.

I abhor these drone strikes and the killing of citizens by their own government, and in fact agree with pretty much all of the comments so far - particularly regarding the need for due process in place of assassination. But we can't ignore history and act like the US government hasn't killed its own soldiers on the field of battle before. The only things really new here are the drone firing the weapon and the scope of what the government considers the battlefield.

For what it's worth, those field executions are supposed to happen after a court-martial trial. If they didn't, the proper procedure wasn't followed. You can't justify future illegal activity based an prior illegal activities by others. The "my friends did it too" excuse doesn't get you out of trouble in elementary school. It shouldn't get you out of trouble in the real world.

I'm sorry, but I feel that anyone who believes in, let alone writes a brief supporting, remote targeting and (lets call a spade a spade) assassination of American citizens even while overseas has no business sitting on any bench in any judicial court here in the United States.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process. If you really want them, send in a team to extract them and bring them back to face justice in a court. Revoke their passports and if they get stopped in an extradition-friendly country and held up, extradite them. Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

The government was targeting it's own citizen for assassination.

I think you mean IS targeting it's own citizen for assassination. It is still going on!

Can't wait until the legal basis for targeting American citizens on American soil is established. If the Prez does not like what you wrote a drone strike is ordered and problem solved without any expensive due process that will need to go through the court system. ;-)

I simply cannot comprehend how it makes sense to classify the reasoning upon which a legal decision is taken. I can understand that, in a specific case, some of the operating details are classified (names, locations, specificities of the employed means, etc.) but they can be easily replaced by more generic terms which do not compromise the relevant operations while keeping the overall legal reasoning public.

That and the fact that this kind of opacity is deemed useful only because terrorists are targeted. It would be defendable to an extent if terrorists killed thousands of americans per year but aside from 9/11 they are doing a pretty bad job at it. It fails me that reasonable people can consider this a threat to national security: car drivers kill thousands of US citizens per day. How can something which kills barely one tenth per year threaten the security of the US unless they overreact and collectively jump off a cliff in fear?Please explain.

I fail to find a reasonable explanation for why the combination of the aforementioned two absurdities. I will resist relying on conspiracy theories but damn, they make it really hard.

The reason is that the Obama administration HAS made government more transparent as was stated by Mr. Obama during the campaigns. Hope and change

For what it's worth, those field executions are supposed to happen after a court-martial trial. If they didn't, the proper procedure wasn't followed. You can't justify future illegal activity based an prior illegal activities by others. The "my friends did it too" excuse doesn't get you out of trouble in elementary school. It shouldn't get you out of trouble in the real world.

And for what it's worth, I'm not trying to defend the actions at hand, and the historical precedent doesn't make it ok today. Court Martials are an attempt to apply a formal process to a chaotic situation, and are better than summary executions, but are themselves limited by their circumstances.

Given that a court martial would apply to US soldiers, and the individual in questions was a US citizen, enemy combatant, but not a member of the US armed forces, a court martial may very well not apply.

The designation of Enemy Combatant was likely applied after some non-transparent internal review by someone in the executive, which at the moment would be the pathetic analog of a court martial for a non-military citizen/enemy. Because of the horrendous move that was the creation of the Geneva Convention exempt classification "unlawful enemy combatant", there isn't a proper procedure for handling such cases defined, so we get these sorts of behind the scenes secret actions.

War as a whole is a messy hell, and it should be avoided whenever possible because it invariably creates situations like this.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process.

It should be noted that "enemy combatants" is these days a fairly meaningless term (on purpose), and the one US citizen targeted for killing qualified as both a citizen and as an enemy combatant (note the line "the legal rationale behind its claims that it may kill enemies who are Americans overseas").

It should also be remembered that field executions for traitorous behavior is not new.

I abhor these drone strikes and the killing of citizens by their own government, and in fact agree with pretty much all of the comments so far - particularly regarding the need for due process in place of assassination. But we can't ignore history and act like the US government hasn't killed its own soldiers on the field of battle before. The only things really new here are the drone firing the weapon and the scope of what the government considers the battlefield.

I want to point out that killing a soldier for dereliction of duty on the field of battle is different from assassinating civilians. If that is what you were referring to.

I'm sorry, but I feel that anyone who believes in, let alone writes a brief supporting, remote targeting and (lets call a spade a spade) assassination of American citizens even while overseas has no business sitting on any bench in any judicial court here in the United States.

Enemy combatants? Sure. Foreign military targets? Sure. However, regardless of their current location, American citizens have the all the rights to which they are entitled including due process. If you really want them, send in a team to extract them and bring them back to face justice in a court. Revoke their passports and if they get stopped in an extradition-friendly country and held up, extradite them. Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

Two people are born. Both become terrorists and are both planning an attack on American soil. One was born outside of the US and the other was born on US soil then shipped to the home base of the terrorist origination. Its ok to kill the guy who wasn't born here but not ok to kill the guy who was?

Am I the only one bothered that the line in the sand on how killable someone is, is if they happened to be born on US soil? For the sake of argument lets say other than this single fact, location of birth, these two individuals led almost identical lives. They went to the same schools, went to the same religious practices, had the same mentors, etc. The guy born here has rights, is entitled to due process. The guy not a US citizen eh whatever.

People get all high and mighty about the rights of an individual so long as they were born in the US or obtained citizenship but if you weren't born here, f you you have no rights. We get this way because we're citizens and we don't want to think that one day the government could just kill us for one reason or another. I understand this and feel the same but if an individual is suspected of working with an enemy of the state and is unwilling to come to stand trial then I believe the rights of citizenship should be revoked. You don't get to have it both ways. Citizenship isn't a shield to hide behind as you work to attack your fellow citizens.

I want to point out that killing a soldier for dereliction of duty on the field of battle is different from assassinating civilians. If that is what you were referring to.

And when the battlefield is domestic, or the civilian walks to the battlefield and picks up arms against domestic forces? World War Two Europe suggests that the line gets real fuzzy real fast, even for conscientious objectors.

Remove the drone from the question and place Anwar Al Awlaki in the midst of a firefight, a-la Hamdi. If Hamdi had been killed by US forces in a battle, would we be having this conversation on his behalf?

The difference here is that the killing of Anwar Al Awlaki took place outside of an active battle zone under the premise of being involved in the planning of future attacks, and therefor an enemy leader like any other. We don't have legal frameworks in place for that situation, and that was taken advantage of to avoid the citizenship question and the much better due process. The question of extraction comes up, of course, but at least a public conviction in absentia would be been better than nothing.

Assassination of our own citizens is the beginning of a horribly slippery slope that we have no business starting down.

Yeah and the fact a drone did it honestly has no bearing on the issue at hand, and reeks of political bullshit. Legally, it shouldn't matter if it was via seal team, robot, cruise missile, or hydrogen bomb. The government was targeting it's own citizen for assassination.

Every drone is piloted by an American serviceman. Drones are just remote-controlled airplanes, not robots programmed to fire at a set of coordinates. An American has to fly the drone to the target, set the crosshairs, and launch the missile.

So without a trial and based on questionable "intelligence," the administration is ordering Americans to kill other Americans after reviewing it with their secret "decide who we want to kill" court.

So, since the administration is (or professes to be) all about being green, is Obama going to have the Constitution and associated documents recycled once they've all been torn up and used for toilet paper?